The "Millionaires' Amendment" and the Millionaires' Court

In the uproar over some other rulings from the Supreme Court last week, I missed the judgment in the case of Davis v. Federal Election Commission, which struck down what is known as the "millionaires' amendment" to the McCain-Feingold campaign-financing law. While the nickname makes the provision sound like something plutocrats would love, it had the opposite effect. It allowed candidates to raise money past the federally-mandated limits if they were running against self-financed opponents who spent past a certain threshold of funds. Davis was a millionaire candidate who protested that the law gave an unfair advantage to his opponent. As I deduce his argument from skimming through Justice Alito's opinion, Davis felt that the "millionaires' amendment" stripped him of an advantage he expected to enjoy by virtue of his wealth and willingness to spend. If that boggles the mind, consider that Alito and four other justices bought it.

Alito finds that the amendment violated the First Amendment because it discriminated against self-financing candidates. He cites the infamous Buckley v. Valeo case from 1976 which established that spending money on a political campaign was a form of "free speech," and argues that Congress has no business attempting to counterbalance any perceived unfair advantage wealthy candidates might enjoy. Wealth, Alito insists, is but one of several advantages candidates can have that can counterbalance one another, name recognition and incumbency being others. It is unfair, in Alito's view, not to let Davis take advantage of his wealth. Never mind the fact that, as Justice Stewart notes in dissent, no limit was actually imposed on Davis's fundraising. Any hint of bias against wealth, any notion that it had an influence that should be counteracted in the interest of fairness, was unfair as far as Alito was concerned.

It's probably never occurred to Justice Alito or the concurring justices, or to plutocratic pundits like George Will who celebrated this decision, that there might be a good political idea that might not draw money. Because such an idea is unfathomable to them, they see no harm in making money a measure of political commitment. At the same time, they blow off anyone who worries about money's influence by noting all the times when the richest candidate failed to win an election. For all I know, there may even be times when the poorest candidate won, but I bet it happened less frequently once television took the place of old-school campaigning. The plutocrats wouldn't dream of taking money out of politics because they want money to give people an advantage. George Will's standard scenario, expressed again in his latest column, makes the moneyed candidate the challenger against an entrenched incumbent. In this scenario, money is practically required to overcome the advantages incumbency confers upon the professional politician. There seems to be an underlying assumption that money can do the work that mere words can't. Why is that? Why do we need to make it easier for millionaires to win elections? Justice Alito doesn't really answer the question.

P.S. Will uses his column to take another swipe at Senator McCain, asking (and plausibly, too) why the Republican should keep his word as President to nominate more Supreme Court justices like those who are slowly dismantling his signature piece of legislation. Mr. Will sounds like someone looking for a new party this year, and there are probably lots like him.